I love the Harvard comma because it creates a balanced list.
For certain sentences, semicolons are sometimes needed in lieu of commas to introduce greater grouping when formatted text is unavailable: Mary visited New York City, New York; Chicago, Illinois; and San Francisco, California.
Well, that's impractical pseudo-advice stemming from another kind of snobbery: that of ostentatious, pseudo-anti-intellectualism layered with a patina of confrontational,
extravagant language like a 2nd-year English major trying to impress. Been There; Saw That; Bought The T-Shirt.
I think you are taking it a little too seriously. Vonnegut joked around a lot. His signature was purposefully designed to look like an asshole. I wouldn’t read so much into it.
Yes, this is one of De Morgan’s laws. When I read the legislation I interpreted it to mean that the negation distributed over the conjunction, resulting in a disjunction. Insisting that the conjunction survives is faulty logic!
The two examples in the article are "Don't drink and drive" vs "the patient shouldn’t eat any food, drink any liquids, and smoke".
It seems abundantly clear to me that the second example is poorly worded and should say "or" instead of "and". The same goes for the actual court case. Arguing that "and" actually means "or" makes very little sense.
>In 1995, for instance, the U.S. Supreme Court issued a decision in Gutierrez de Martinez v. Lamagno that under certain contexts, shall could be construed as may. The decision does not imply that shall always means may, but rather that unless expressly defined, context determines whether shall is mandatory or precatory. [...] Congress also issued the Plain Writing Act of 2010 (the Act), which required all federal agencies to follow the federal plain language guidelines and use must instead of shall when imposing requirements.
Yeah but like...why bother? Use the more obvious term always & there's no need for ambiguity. If you're saying "these things mean the same thing" in a formal context then there should be a REALLY good reason why you need both of them to exist, period. Otherwise remove one and simplify what people need to know.
I get the feeling that many RFCs are written by programmers who want to cosplay as lawyers. There's no reason for a technical spec to be written like a legal contract with archaic formulations.
There's also no reason for legal contracts or laws to be written with archaic formulations, but common law countries have a fetish for this kind of thing.
There is every reason for a technical specification to be unambiguous. That's it's one job. Behavior must be clearly within spec or not, otherwise it hurts interoperability.
Implementations should support the entire spec, and not produce something outside of spec, then every implementation can interact with every other implementation.
If the implementers can't agree what's within spec and what's not, it's a bug in the spec.
Law has a similar requirement, only slightly looser because it has a fallback of getting a human judge to decide in case of disagreement. Still, ambiguity in a law is a bug.
In both cases, you do use natural language, which can rely on context, so the real test is, or should be, whether a "reasonable person" would choose a different interpretation, not whether one is technically possible.
For understanding what the protocol is meant to do - I agree. But in my experience when actually implementing standards spanning thousands of pages, the strict language has been a lifesaver.
Just to piggyback on the good comments already mentioned, there is often a need for a "technical spec to be written like a legal contract" because legal contracts often reference technical specs. Anyone who's worked a contract that has ambiguous technical specs knows it often becomes fodder for rules-lawyering.
One example from my past was a contract that levied specific requirements for equipment operated autonomously with software, but "autonomous" wasn't explicitly defined. A contractor who didn't want to spend the money to meet the extra requirements argued the system couldn't be considered autonomous because it required a human to turn it on (despite being fully autonomous after that point).
In Illinois shall means shall only if there is a punishment attached.
So, if a law says "A peace officer shall not shoot innocent unarmed minorities" but fails to specify any punishment for non-compliance then it is merely "directory" and nothing will come of any violation of that law.
For instance all the laws regarding how jails should be run (e.g. prisoners shall be fed) are all directory, not mandatory because there is no punishment for failure.
Under criminal law, perhaps, but the situation is more complex under civil law.
One who breaches their duty to another by breaking a law intended to protect the party against the very harm sustained, resulting in harm to the other is liable to the other for pe we negligence.
I would assume, again, that only applies if the law was mandatory, not directory. And most laws covering government officials in Illinois are only directory. So there is no real duty to follow.
Oh, that’s exactly what there is: a duty to follow the law insofar as that law was made with the intent of protecting the plaintiff if the plaintiff was injured in that manner in which the law intended he be protected against.
There is no reason that the absence of a penalty under the statute would immunize everyone violating it from per se negligence, unless I’m missing something foundational here.
I'm not great on tort law. IANAL. But let's say the law says "The court clerk shall issue all requested documents within 7 days", and the clerk takes 11 months to get you the documents and due to their tardiness you lost your job, wife, children, residency, whatever.
I'm not feeling that you could sue, in Illinois at least. Sure, the law said they "shall" do it, but it's directory, not mandatory. It just looks like it is mandatory. I know 100% you cannot prosecute a government official for Official Misconduct[0] in Illinois for violating a law that says they "shall" do something unless it also has an associated punishment for the specific statute they violated.
[0] (720 ILCS 5/33-3) (from Ch. 38, par. 33-3)
Sec. 33-3. Official misconduct.
(a) A public officer or employee or special government agent commits misconduct when, in his official capacity or capacity as a special government agent, he or she commits any of the following acts:
(1) Intentionally or recklessly fails to perform any mandatory duty as required by law;
Cruel or unusual punishment is a standard that only applies to convicted prisoners, and not those in county jails, which come under due process.
Generally though, yes, you are right it becomes a constitutional violation, rather than a statutory violation if you don't feed the prisoners. Often though the statues give rights above and beyond the constitution. For instance, in Illinois it requires jails to give prisoners 1800 calories a day. But it is not enforceable. So they can give a lot less as long as they don't kill you. And IIRC the statute also demands "The menu shall be diversified so as to avoid the monotony of a standardized diet." which again is not enforceable. So they can basically just feed you Nutriloaf once a day and call it job done.
It's funny because the first line includes a bug in it. It says a minimum of "1800 to 2000 calories." Well, which is it?
(also, just a thought, but there are generally no punishments for violating a person's constitutional rights -- you can sue for your injuries, but prisoners specifically are severely restricted by Congress on bringing suits against their captors because there were too many, and those suits can only allege physical harm, not any kind of mental
or emotional suffering)
The majority of carceral environments in the US that are openly in violation of the 8th a. in degrees of not good to third-world, inhumane depravity. (The one where a prisoner died of bug infestation and had a nonfunctional toilet.) The most obvious ones are those with the most deaths and substandard medical care.
The problem is the prevailing US attitude of incarceration as punitive, divine retribution rather than rehabilitation and reintegration.
> The court has become “more and more obsessed with language and grammar in recent years,” says Stanford Law professor Jeff Fisher. “Oral argument these days can seem like being in a sixth grade English class.”
> “The Court has had cases, for example, that turned on the word ‘so’” and “the use of a definite article instead of indefinite (‘the’ instead of ‘a’),” he says. “This is all a product of the ascendancy of ‘textualism’—the theory of statutory construction that aims to discern precisely what the words Congress enacted mean, as opposed to what Congress probably intended to say.”
Great news, if true, for nerds in comment sections everywhere trying to get away with treating the law as code by nitpicking the letter of the law.
I think this will have the effect of increasing the latitude for judicial activism as unlikely interpretations of law as it is written become accepted on the basis of (ever-flexible) grammatical arguments.
Can someone explain to me the thinking behind textualism? Isn't it obvious that language is imprecise and context matters? I just don't get it. I also don't understand why laws don't come with comments to better define the intended context.
The law is a written thing. What is written down is the law, is an important concept for a nation of laws. If you are to be governed by laws it’s important that said laws are enforced and it’s not arbitrary, so therefore we aught to follow what the law says and not what we think the intention of the law maker was. If there is ambiguity then the law maker can and should change the law.
If there is a law that fines you for wearing a blue shirt and you get fined for wearing a red shirt, but the court says “we know the intention was red shirt” then that is arbitrary enforcement of the law, we are just at the whims of the officials in the government and not being run by the laws.
Of course in practice you want to be somewhere in-between extremes. You probably don't want to allow daft arguments about specific wording when it's pretty clear there's a correct interpretation. On the other hand you don't want guilty/not-guilty to become entirely detached from the text of law. It's tricky stuff with a lot of grey area which is why judges are important people.
If the objective is to re-interpret long established laws to be mean something else, focusing on the grammatical details is as good of a justification as anything.
Context and intent matters, but context and intent are very subjective. Justices are apt to read the context and intent that they want to interpret legislation in a way they personally think would be beneficial. If you want an example of this, see Scalia's dissent in King v. Burwell. It's very entertaining.
A textualist approach can also unfortunately lead to biased decisions, but only to the extent Congress is imprecise with language. A textualist approach has the benefit of discouraging Congress from crafting bad legislation that requires judicial interpretation in the first place.
The way it is written, it suggests that they're not allowed to have all 3 simultaneously.
not (A and B and C)
But then if you think about it in context, that law would make little to no sense. So likely they intended "or".
I have no idea how this works in the US, but here judges are told to follow the intention of the law and not the precise text. You wouldn't get out because someone made a grammar error.
Legislative intent matters in the US, but we have some schools of legal thought that are pretty skeptical of it, so it's not always the end-all. (The concern being, every time a court uses legislative intent to disregard the statutory text, it becomes a little bit harder for someone to understand what the laws that govern them are.)
Considering the number of "Originalists" on the court, you would think it is well established. Or is that just for the SC where judges have more latitude in getting the verdict they want?
The thing is, almost every time when people put negative conditions (that you must not meet in order to qualify for something else) every condition is disqualifying, and that idea is expressed with "or". Which of these sounds more natural to you?
"You can have some of my pie if you don't have eggs, sausages, and bacon."
"You can have some of my pie if you don't have eggs, sausages, or bacon."
To me the second one sounds more natural. The first one sounds very unusual. I can have pie only on the condition that I don't have all three things? Okay... It sounds so strange because no one ever says that. I can't see someone using "and" there if they didn't mean it, because it's such an unusual grammatical construction.
Note that I didn't say that either didn't make sense or was grammatically incorrect, just that it sounds very strange.
I don't think your examples are that great, since you're listing requirements that "you" must meet to call for a ride, not things that disqualify "you" from calling for a ride. Also, using both "and" and "or" with lists of two items is common. Both "don't drink and drive" and "don't drink or drive" are plausible pieces of advice. "Twelve hours prior to the surgery don't drink, eat, and take any medicine" would be a very strange indication; it almost sounds like I'm being not to drink or eat, but to take any medicine of my choosing?
I also suspect the judiciary is not happy with 'mandatory minimums' which ties their hands, and make them pawns in this larger mass incarceration project
"normally" the court has to apply strict interpretation of the written text. if that strict interpretation leads to ambiguity or confusion or logical fallacy, then the court has to see the "legislative intent" of why the enactment was made in the first place in order to come to a reasonable conclusion as to what the framers of the law intended to be.
if the word written is "and" meaning +, that would imply in strict sense that this is a condition that has to be followed along with other conditions.
now, if someone says no, the legislative intent was not to be + but "or" because the enactment wants to provide relief and not to incur more punishment, and that applying the "+" interpretation would violate my fundamental rights, then the court can decide if the loose definition is justified from the legislative intent and can accept the same.
I don't think anybody really agrees with that position. Let's take an extreme example
The second amendment is: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
The definition of an armament according to Britannica is: military weapons that are used to fight a war
Nuclear bombs have been used by the US military to fight a war. By your logic the right of the people to have nuclear bombs is protected by the second amendment.
In what fantasy world does "well regulated" and "anyone can own nuclear weapons" co-exist?
The whole argument about the 2nd Amendment is because it's so vague and ambiguous. If it had just clearly said "Each citizen is permitted to own a flintlock musket, 2 flintlock pistols, and a cavalry sword" (which was probably much closer to the intent of the Amendment) then we wouldn't have such a big issue with gun control. Then again, we might just have fully automatic assault "muskets".
In any case, even if you were allowed to own a nuclear weapon, that doesn't mean that you can afford one. You're allowed to own a Blackhawk helicopter or a HEMMT too, but do you? Herein lies the problem of gun ownership as a "right". Does that mean that people should be provided with guns for free?
>In what fantasy world does "well regulated" and "anyone can own nuclear weapons" co-exist?
Define well regulated and explain how it had anything to do with excluding certain types of weapons.
>The whole argument about the 2nd Amendment is because it's so vague and ambiguous. If it had just clearly said "Each citizen is permitted to own a flintlock musket, 2 flintlock pistols, and a cavalry sword" (which was probably much closer to the intent of the Amendment) then we wouldn't have such a big issue with gun control. Then again, we might just have fully automatic assault "muskets".
This is utterly ridiculous. There were rudimentary automatic weapons (puckle guns) that existed decades prior the Constitution.
Second, private citizens owned the same weaponry as the military. Canons, guns, ships, etc. If the founders wanted to limit the citizens they would have said that was their intention.
Third, if you want to take the interpretation that says only things that existed at the time qualify, then surely you are consistent and don't think the first amendment applies to the internet? Or do you just hold that standard for the 2nd amendment.
>In any case, even if you were allowed to own a nuclear weapon, that doesn't mean that you can afford one.
True, but irrelevant.
>You're allowed to own a Blackhawk helicopter or a HEMMT too, but do you?
I don't have any intention of owning either or nukes for that matter.
>Herein lies the problem of gun ownership as a "right". Does that mean that people should be provided with guns for free?
I don't think rights means you should necessarily be provided it. I don't think the government owes me free electricity and computer so I can exercise my first amendment rights for example. And before you say that example is dumb, remember that people are pushing the idea that the internet is a right. Well the internet is useless without a computer/phone. And a computer/phone is useless without electricity.
Regardless of your wish that guns are not a right, they are considered one in the US. If the US pushes the idea that healthcare is a right and as such it must be free, then I would support a lawsuit that demanded free guns from the government. I believe in consistently applying standards.
Also if it were intended as "meeting all of the criteria disqualifies you", then part A is completely redundant, isn't it? If B and C are true then A is also true.
This wouldn't be altering the law they were convicted or sentenced under so ex post facto doesn't apply to this, even if that seems illogical. This is a later law that tries to reduce sentencing for some existing convictions, I believe.
Is it possible to consult notes, arguments, and drafts
made when Congress was working to create and negotiate
the law?
To learn more about the intent and thus how the law
should be interpreted?
This could happen, but the courts have become more textualist in recent decades. When I was in law school in the aughts, we learned about legislative intent. I imagine current law school students are taught about it, but told that it is disfavored, and only used as an argument of last resort.
Usually a high court will refer to the recorded texts of legislative debates to help guide them in situations like this. But it might not have ever come up on the record.
> Justice Elena Kagan tackled that very example during Monday’s oral arguments, comparing it to a hypothetical medical test:
>
> > So you’re going in for a medical test and you receive something from the hospital, and it says, to receive this test, the patient should not, and then, you know, it has a list of things that the patient shouldn’t do, and it says the patient shouldn’t eat any food, drink any liquids, *and* smoke. So I’m going to assume…that you’re not a smoker. Do you feel perfectly able to eat and drink as much as you want?
That isn't happening, though. I was curious so I looked at the last paperwork I have my hands on. It said "Do not:" and then there was a bullet point list, no conjunctions. I don't think it's ambiguous, and Kagan's argument here is disingenuous.
I reacted the same way to this hypothetical. It seems strange to pose a hypothetical that is missing one of the key elements of the original structure. Couldn't the Justice and her clerks come up with something more on-point? (Relatedly, should I have written "or her clerks"?)
In the above referenced example, it would say “or” if it means what Kagan implies. Cut it down to two items: “Do not: drink and drive” clearly allows the exclusive use of either.
"Any" and "all" do have similar meanings, but you can't always simply replace "any" with "all" and retain the same meaning every time.
"From any floor, you can use the fire escape to reach the ground" -> "It is true at all floors that you can use the fire escape to reach the ground". In this case you can replace "any" with "all" without changing the meaning; hypothetically one could interpret that to mean that while occupying all floors simultaneously you can use the fire escape to reach the ground, but since that's impossible (unless there's only a single floor) no one would interpret that sentence that way.
"Ensure we have proper licensing for {any|all} software we depend upon". Again the meaning is preserved, because in this case "for all" is actually the more correct form. Every one will interpret "for any" correctly (as "for all"), but it could alternatively be interpreted to mean that you must have the license of at least one of said software.
"Press any key, 3 times." -> "It is true of all keys that you can pick it and press it three times. Do so for one." Obviously the meaning changes if you just replace "any" with "all". A more subtle nuance is whether you're being asked to [press three times] [any key] or to [press any key] [three times].
"Aim to dress for any weather" -> "It is true of all weathers that you should aim to dress for it". This is the same case as the second example, it should have been "all". Otherwise there's an ambiguity that could be interpreted to mean that you should aim to dress for an arbitrary weather of your choosing.
I would say that "any" when used in a declarative statement (such as your first example) means that the proposition is true for all members of the set under consideration. When used in an imperative statement (such as the other ones) sometimes will mean that you must apply the action to all members of the set, and sometimes that you're free to choose any subset and apply it to those. "Wash any dog" and "wash any dogs" and "for any dog, wash a cat" all mean different things.
Personally I don't read this as "press all keys 3 times" but "for all keys, you can press it 3 times <to continue>" but I agree with the rest. In that sense it is a universal quantifier to throw in a formal logic term.
I'd say both QQQ & QWE would satisfy "press any key, 3 times". It's not necessarily saying to press the same key 3 times. "Press any 3 keys" isn't the same, because I could just press one key three times.
I think "a key" makes it clear that there is one key, could be any of them, but you need to select one key. "Make any 3 key presses" would in my mind finally allow QWE and QQQ.
Going against what's plainly and clearly written in favor of an imagined complete opposite congressional "intent" would be appalling - how many congresscritters voted for the bill as a compromise precisely because the "and" made the section more permissive?
And what about the general principle that ambiguity is decided against the drafter? This isn't a contract, but surely a similar principle should apply to the direct removal of individual liberty by the government. If congress didn't actually do the diligence to enact the more restrictive ruleset, then it seems that the correct judgement is the one that gives the government a lesser ability to keep people in cages.
No, this has never happened that I know of. I just did 10 years in jail because of a mistake of putting an or instead of an and. Long story.
What happens is that the judges can go back to all the formal recorded debates of the legislators concerning this law to try and figure out their intent.
In my case it was just someone making a typing error because the police rushed into the legislative chamber and demanded a literal last-minute change to a completed bill. They fixed it six months later when someone noticed it. No helping anyone in the meantime who is affected by the error though. It is very, very rare that a judge will go against the wording of a law even if it is literally insane.
In general, the deference to 'legislative intent' has become less of a focus over the last couple decades. I don't think legislators have ever been called to testify in this manner, but even if they were it would not happen at the Supreme Court (or any other appellate court). Witnesses are only called at trial courts.
A big oil company was a defendant in a billion dollar lawsuit. The case hinged on the interpretation of a comma in a safety code for boilers and pressure vessels, whether it meant "and" or "or". The expert witness' interpretation happened to be in the big oil company's favor because that was the intended meaning. When laws and safety codes are crafted, it's vital that they are expressed directly and unambiguously so there can be absolutely no doubt.
This happens with alarming regularity. I once read through the entire criminal code of Illinois and found about a dozen plain bugs like this just speed-reading it.
The supreme court routinely "fixes" laws by providing a canonical interpretation of them, or else nullifying them altogether by declaring them unconstitutional. That is their business.
Unfortunately laws and rules and even road signs are often written in ambiguous ways. My pet peeve is "a, except b, and c". Does the "and" goes with a or with b?
Unambiguous language should use parentheses like maths do. Or avoid negatives ("not", "except", etc.).
What's being decided here is not so much the meaning of 'and' as whether (in this particular instance) to respect the (unintended) letter or to respect the spirit of the law.
There are contexts where, somewhat puzzlingly, or(/and) is the more natural word to use, but where it's possible to argue that using and(/or) would have been more literally correct. For example:
> How do you make a higher order function in Python? You have two choices: you can use nested scopes _or_ you can use callable objects.
Here 'or' is the most natural word to use, but one could argue the more literally correct word to use would have been 'and'.
Before making the choice, both option 1 AND option 2 are indeed available to you. But semantically, the OR refers to a choice already made, where one option excludes the other.
This court case feels like the opening minutes of a high school speech and debate round when you have to define "definition" before you can get started. This is why i'd be a terrible lawyer...
It seems obvious that this AND was added as one does a list of things, "Add sugar, flour AND water." but in a conditional, which makes it possible to construe a different meaning.
In my understanding, the court should strive to interpret the law by its intention, and here it seems reasonable that the AND should not have been there.
It should just have been "If any item in the following list of conditions are met [A, B, C]", even if it seems syntactically less polite, there's at least no ambiguity as to what it means.
Just look up what the intended meaning is, there must be drafts and revisions and discussions from the time the law was created, right? And then apply the intended meaning unless the affected party can make a reasonable case that they were aware of this law, followed it by the letter and should not bear the negative consequences of mistakes made while creating the law.
This is what I thought immediately; "this... may be slightly ambiguous. They must have case records somewhere to give me an idea."
If YOU were a judge/jury, would you really want to stake years of someone's life over what ended up being a typo by an overworked intern?
(Also, I think this could be a good argument against mandatory minimums, just out of principle)
I didn’t check the referenced document, but wouldn’t be easier to ask the authors what they intended? Ultimately the words are a representation of meaning in someone’s mind.
